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USCCB Life Issues Forum: Roe v. Wade
Roe v. Wade: Questions and Answers
USCCB Secretariat of Pro-Life Activities
SEPTEMBER 7, 2018
Roe v. Wade is well known as the 1973 Supreme Court case that legalized abortion in the United States. With the retirement of Justice Anthony Kennedy—and as the confirmation hearings for his replacement have moved forward—Roe v. Wade has once again found itself at the center of public debate. Pro-abortion groups continue to spread misinformation about Roe, fearing its eventual reversal. Accurate answers to some common questions can help us to better understand Roe and to educate others.
What Did Roe v. Wade Do?
It said the right of privacy (not mentioned in the text of the Constitution) “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” The Justices ruled that a state may not restrict abortion at all in the first three months of pregnancy (first trimester). It may establish guidelines only to protect the mother’s health during the next three months (second trimester). After “viability,” when the unborn child could survive if delivered (which the Court placed at 24 to 28 weeks of gestation), the state may prohibit abortion unless it is deemed necessary to preserve the mother’s “life or health.”
Did the Court Find That Life Doesn’t Begin Until Birth?
No. It argued that uses of the word “person” in the Constitution do not seem to include the unborn. Then, citing wide disagreement as to when human life begins, the Court said it “need not resolve” this difficult question. Instead of considering the scientific evidence that life begins at conception, or even allowing legislatures to protect those who have never been proven to be anything but human beings, the Court decided to treat unborn children merely as “potential life”—and to prevent the people or their elected representatives from determining otherwise.
Do All Legal Experts Approve of Roe?
No. Roe has been criticized by several Supreme Court justices and even by legal experts who favor legalized abortion. Justice Byron White called it “an exercise of raw judicial power.” Yale law professor John Hart Ely has said that Roe is “a very bad decision …. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Edward Lazarus, former clerk to Justice Harry Blackmun who wrote the Roe opinion, says that “Roe, as constitutional interpretation, is virtually impossible to defend.”
Why Are Abortion Advocates So Strongly Committed to Retaining Roe?
Roe v. Wade is increasingly recognized as bad law, bad medicine, and bad social policy. Most Americans object to an unlimited right to abortion. Therefore, such a policy can be kept in place only by extraordinary measures—by insisting that Roe is untouchable, regardless of the evidence. Abortion advocates know that any return of this issue to the democratic process would produce a very different policy from what the Court created. But false judicial doctrines do not have a right to live. Human beings do.
For more information on Roe v. Wade including the full listing of questions and answers, visit: www.usccb.org/roe.
This issue of Life Issues Forum has been adapted and excerpted from the July 2018 USCCB Fact Sheet by the same name: http://www.usccb.org/issues-and-action/human-life-and-dignity/abortion/upload/Roe-v-Wade-Q-s-and-A-s_Final_2018.pdf.
The retirement of Supreme Court Justice Anthony Kennedy has propelled Roe v. Wademore prominently into public discourse. As the confirmation process for his replacement moves forward, pro-abortion groups are spreading misinformation about Roe as they raise alarms about its purported demise.
The Novena for the Legal Protection of Human Life, which began on August 3, urges our prayer and fasting for the intention that this change in the Supreme Court will bring our nation closer to the day when every human being is protected in law and welcomed in life. It also seeks to dispel the misinformation spread by pro-abortion groups by sharing accurate facts about Roe.
Here are a few of those facts:
Roe and Doe legalized abortion through all nine months of pregnancy
Many people don’t realize that Roe v. Wade legalized abortion through all nine months of pregnancy. Roe says abortions may not be restricted at all during the first three months and in the second three months may be regulated only for the mother’s health. After fetal “viability,” Roe allows abortion to be prohibited, but still mandates an exception for the woman’s life or health.
But in Roe‘s companion case, Doe v. Bolton, the Court defined “health” to include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being” of the mother. In most states, this is broad enough to permit virtually any abortion in the seventh, eighth, or ninth months of pregnancy if any of these reasons is invoked.
If Roe is overturned, the democratic process—not the courts—will determine abortion policy
Before Roe, all states permitted abortions necessary to save the mother’s life, and some permitted abortion in additional circumstances. But Roe deemed any prohibition on abortion as unconstitutional.
If Roe is overturned, policy decisions about abortion will be made by the citizens of each state through the democratic process, rather than by courts. Some states will place limits on abortion, and others will likely have few limits.
Roe‘s extreme abortion license is not widely supported
Abortion advocates claim that Roe enjoys broad public support, and some recent polls seem to provide evidence for this claim. But most polls don’t explain Roe‘s extreme abortion license, and some misrepresent it. For example, a 2016 Pew Research Center poll claims 69% of Americans favor Roe v. Wade and 28% oppose it. But the poll wrongly describes Roe as establishing “a woman’s constitutional right to an abortion, at least in the first three months of pregnancy.” The fact is, Roe made abortion legal through all nine months of pregnancy and for virtually any reason.
The vast majority of Americans oppose the policy of nearly unlimited abortion dictated by Roe, and most believe abortion should not be legal for the reasons it is most often performed. A May 2018 Gallup poll shows that 65% of Americans said abortion should be illegal in the second trimester and 81% said abortion should be illegal in the last trimester. A 2018 Marist poll shows that a majority of women said either that abortion should never be permitted (9% of respondents) or permitted only in cases of rape, incest, and to save the woman’s life (42%).
Readers can easily share these and other facts about Roe with their elected representatives and others by signing up for the Novena at www.usccb.org/pray.
Greg Schleppenbach is the Associate Director of the Secretariat of Pro-Life Activities of the United States Conference of Catholic Bishops. For more information on how you can join in the bishops’ pro-life activities, please visit www.usccb.org/prolife.
